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Monday, 6 February 2017

After Sweden [here, here, and here] and Germany [here and here], it is now the turn of a
Czech court[here]
to apply the seminal decision of the Court of Justice of the European Union in GS Media[for a quick, visual summary see here; Kat-coverage here]. The result? Quite ‘interesting’, as Katfriend
Juraj Vivoda (Marek &
Partners) explains.

Here’s what Juraj writes:

“An open war, yarr!

In 2011 a 16-year old teenager from the Czech
town of Liberec was accused and two years later found guilty of a crime that consisted
of embedding on his own website (cinemaworld.biz) films protected by copyright. Nicknamed
the ‘Liberec Pirate’, this case involved a classic ‘embedded links’ scenario
where the embedded links pointed to works uploaded and stored on third-party
websites.

The Czech division of the Pirate Party (CPP)
strongly criticized the ruling and started a campaign claiming that “Linking is
not a crime". The CPP also declared an open war against the Czech Anti-Piracy
Union (CAPU) that often represents rightholders in similar cases. The CPP even
went as far as creating its own website (sledujuserialy.cz; translated “I watch TV shows”) where its visitors were
able to post embedded links to episodes of various TV shows.

The CPP was pleased when the legality of its openly
provocative website was tested in criminal proceedings brought before the District
Court for Prague 4 (Obvodni soud pro Prahu 4).

Gold?! You want gold?!

Before applying the
criteria provided by the CJEU in its recent case law on the right of communication
to the public within Article 3(1) of the InfoSoc
Directive, the Czech court reviewed earlier national decisions of the Czech
Supreme Court on hyperlinking. In particular, the Court highligthed how in all
previous cases, a profit-making intention of the operators of websites providing
hyperlinks to works protected by copyright and made available without authorization
of the rightholders had been present and established. In this way, the Court
distinguished the facts of the CPP case from the facts of previous national
cases.

The GS
Media test

The Czech court then
turned to CJEU case law, namely the judgments in Svensson,
BestWater
and - most recently – GS Media. As
for the application of the GS Media
test, the Court referred to paragraphs 47 to 49 of the judgment to conclude that
where embedded links are provided to works made available on another website
without the authorization of the relevant rightholders, it must be first established
whether such embedding was carried out with the intention to make a profit. The Court
inferred from GS Media that where
embedded links are not provided for profit, it must be presumed that the
website operator did not know and could not have known that the initial
communication was unlawful. In contrast - the Court
noted - where links are provided for profit, the knowledge of illegality of initial
communication must be presumed. The Court held that where it can be
established that the website operator knew or could have known that the
hyperlinks point to works illegally uploaded on the internet, for example on
the basis of the fact that the operator has been notified of this fact by the
relevant rightholders, it must be concluded that the provision of such hyperlinks
constitutes an act of ‘communication to public’ within the meaning of Article 3(1)
of the InfoSoc Directive.

Profit-making considered

In determining whether
the CPP website was operated for profit, it satisfied the Court that no
advertisements were placed on the CPP website and that no connection had been
established between one particular seller of T-shirts (with the slogan “IwatchTVshows.cz and I don’t intend to stop”)
and the CPP as an operator of the website. Based on these considerations, the
Court held that the CPP had no knowledge of the illegality of the initial
communication.

Notify or nothing: the ‘no knowledge’ presumption

In applying this (new)
presumption, the Court acknowledged that the CAPU had notified in writing the
CPP that its hyperlinks pointed to works initially communicated without the
authorization of the relevant rightholders. However, the court concluded at the
same time that since the CAPU had failed to demonstrate to the CPP its
authorization to represent rightholders by providing the relevant power of
attorney as requested by the CPP, the presumption of ‘no knowledge’ could not
be rebutted. Taken together, the Court found the CPP not liable of copyright infringement which, under the Czech
criminal laws, can be committed only intentionally.

Comment

There are two interesting
aspects of this case [note that the decision is provisional].

The first is that the Court
intended the notion of ‘profit making’ quite broadly (ie any advertisements on
the website and not just profit resulting from clicking on hyperlink - similar
to the German application of the GS Media
judgment).

The second is that, in
determining whether the website operator had knowledge of the illegal nature of
initial communication, the court applied the GS Media presumption without considering whether the knowledge and,
for that matter, the intent, could have been established in some other way (ie
“could have known”). The fact is that the Pirate Party operated its website as
a form of protest (although the CPP chairman is cited as saying that it was
operated to achieve “a functional balance between the rights of authors,
distributors and consumers of works protected by copyright”) and to demonstrate
disagreement with the CAPU practices.

All in all, it seems
that the Czech judgment is hardly a big win for the Czech Pirate Party. The
Czech court established a heightened legal standard for notification, but that does
not change the reality that upon its receipt, website operators will probably
still be held liable unless they remove the hyperlinks in question.”

5 comments:

I do not see how this judgment is in line with the GS Media-principles. Clearly, the Pirate Party "knew or ought to have known that the hyperlink they posted provided access to works illegally placed on the internet". If CPP actually did not "know", which I highly doubt given the nature and purpose of the website, they "ought to have known" that the site links to illegal content. Such knowledge can not be considered missing simply because CAPU did not present a power of attorney or similar authorization.

"Clearly the Pirate Party "knew or ought to have known that the hyperlink they posted provided access to works illegaly placed on the internet"". How? That is simply a blanket statement based on your own prejudices, completely divorced from the current case law.

The Pirate Party simply asked for links to TV shows, they did not specifically ask for links to illegal copies of tv shows. There was no reason for them to assume that any specific link led to illegal, rather than legal, content. Further, based on the GS Media test, as they weren't making any profit, they were under no obligation to check whether the links were to illegal copies or not. It is extremely clear that based on current case law there was an evidentiary burden to be met to prove that the Pirate Party had knowledge that any specific link led to infringing material. That burden was not met.

I argee, I do not see how one could argue that videos of such kind were not unauthorized or highly unlikely to be unauthorized. I believe the presumption is self can be seen in line with previous case law however it appears that the burden has been set too high in order to rebut this presumption. If one was to take for example the Swedish case and assume that the link to the youtube video was not made by a profite making new agent but a hobby blogger making no profits of any kind it appears much easier to see how the presumption would result in fair result. The ruling of this case however appears to label any non -profit website runner as a nieve and ignorant internet user, when this is not the case. It may therefore be to question whether intentions should be considered or play a role, although this is not at all the approach taken by the CJEU

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